Court Declines Chance to Clarify Graduation-Prayer Law

Public school commencement season this spring could be marked by
renewed legal uncertainty because of the U.S. Supreme Court's refusal
to review a Florida school district's policy allowing student messages
at graduation. The policy has often resulted in student-led
prayers.

The justices on Dec. 10 let stand a ruling by the U.S. Court of
Appeals for the 11th Circuit, in Atlanta, that upheld the policy of the
127,000-student Duval County, Fla., district, which includes
Jacksonville.

The district adopted its policy in 1993, after the Supreme Court
ruled in 1992 that clergy-led prayers at graduation ceremonies violated
the First Amendment's prohibition against a government establishment of
religion. The policy—titled "Graduation Prayers"—
authorized graduating classes to decide whether to have a brief message
delivered by a student at the opening or closing of graduation
ceremonies. The vast majority of messages delivered since the policy
went into effect have been religious invocations or benedictions.

In 2000, the Supreme Court struck down a Texas school district's
policy authorizing student-led prayers before high school football
games. The court ruled 6-3 in Santa Fe Independent School
District v. Doe that the student invocations authorized by
that district's policy represented government, not private, speech.

After its ruling in Santa Fe, the high court set aside a
ruling of the 11th Circuit Court that upheld the Duval County
graduation-speech policy, and instructed the lower court to reconsider
the case. But last June, the full 11th Circuit voted 8-4 to again
uphold the Duval County policy.

The majority of the 11th Circuit court found two key differences
between the football-prayer policy struck down by the Supreme Court and
the Duval County policy. First, unlike the messages in Santa Fe, Texas,
the student graduation messages in Duval County are not subject to
review by school officials, the appeals court said. Second, unlike in
the Texas district's policy, it was not "preordained" that student
speakers at graduation in Duval County would deliver a religious
message, the court said.

Second High Court Appeal

Families challenging the Duval County policy appealed to the Supreme
Court with the aid of the American Civil Liberties Union of Florida and
the Public Citizen Litigation Group, based in Washington. They argued
that the 11th Circuit court majority had failed to properly apply the
Texas ruling to the Duval County policy, which the brief argues was
enacted "to preserve a tradition of prayer at graduation."

"The record is replete with evidence of explicitly labeled
invocations and benedictions, most often delivered by class 'chaplains'
elected to give the 'messages,'" said the appeal in Adler v.
Duval County School Board (Case No. 01-287).

The school district, in a response to the appeal, said the 11th
Circuit court was correct to distinguish its policy from the Texas
district's football-prayer policy. Under the policy in the Texas
district, the Florida district said, "students specifically voted on
whether to pray at games, a constitutionally improper subject for a
majoritarian student vote."

The high court declined to review the case without comment or
recorded dissent. The action is not a ruling on the merits of Duval
County's policy, but it is likely to foster uncertainty and, perhaps,
experimentation by other districts.

The 11th Circuit's ruling now clearly permits districts in Alabama,
Florida, and Georgia to adopt their own policies modeled on Duval
County's. Districts in other states might also try similar language,
depending on whether they are subject to other lower-court rulings.

Mathew D. Staver, the president of Liberty Counsel, an Orlando,
Fla.-based organization that promotes prayer in public schools, said
the high court's action had implications beyond the three states in the
11th Circuit.

"Students around the country may offer prayer or religious messages
under a neutral policy that allows for both secular and religious
speech," he argued.

But Barry W. Lynn, the executive director of the Washington-based
Americans United for Separation of Church and State, said he did not
believe the justices were signaling any shift in the court's views on
school prayer.

"If this 'majority rules' plan spreads to other states [beyond
Alabama, Florida, and Georgia], I think the justices will put a stop to
it," he said.

In another development last month on school prayer, the U.S. Court
of Appeals for the 5th Circuit struck down a Louisiana law that
authorized public school teachers and students to start each day with a
"brief time in prayer or meditation."

The case concerned a 1999 amendment to a 1976 law that had
authorized a "brief time of silent meditation" in public school
classrooms. In 1992, the law was changed to allow "silent prayer or
meditation." In 1999, lawmakers removed the word "silent."

Several families in the 17,000-student Ouachita Parish district in
northeastern Louisiana challenged the change as a violation of the
First Amendment's establishment clause. They won in both federal
district court and in a unanimous ruling by a three-judge panel of the
New Orleans-based 5th Circuit court.

"There is no doubt that the 1999 amendment was motivated by a wholly
religious purpose," the appeals court said in its Dec. 11 ruling. Its
sole purpose was "to return verbal prayers to the public schools" in
violation of the First Amendment, the court said.

Read the legal history of the Santa Fe
Independent School District v. Doe case, in which the
Supreme Court struck down the Texas school district's policy
authorizing student-led prayers before high school football games.

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